Citation Nr: 1433075
Decision Date: 07/24/14 Archive Date: 07/29/14
DOCKET NO. 09-47 661 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Zobrist, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from September 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service.
CONCLUSION OF LAW
Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim.
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A March 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate.
The Veteran's service treatment records (STRs), VA treatment records, and records from the Social Security Administration (SSA) (which include private treatment records) are associated with the record. The RO arranged for a VA audiological evaluation in May 2009. The opinion received is adequate for rating purposes, as it reflects familiarity with the record and includes an adequate explanation of rationale. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met.
Legal Criteria, Factual Background, and Analysis
Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
Certain chronic diseases (including organic diseases of the nervous system - to include SNHL) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
The Veteran's DD-214 reflects that he served in the Marine Corps as rifleman (and had service in Vietnam). His STRs are silent for complaints, findings, treatment, or diagnosis of hearing loss.
The Board notes that VA audiometry prior to June 30, 1966, and service department audiometry prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. To facilitate data comparison, the ASA standards have been converted to ISO standards, which are represented by the figures in parentheses.
On September 1967 service entrance physical examination, audiometry revealed puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
5 (20)
0 (10)
0 (10)
X
0 (5)
LEFT
0 (15)
0 (10)
0 (10)
X
10 (15)
On July 1970 service separation examination, the Veteran's ears were normal on clinical evaluation. Audiometry revealed puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
5
5
10
LEFT
10
15
5
5
0
On September 1990 VA general medical examination in conjunction with an unrelated claim for VA benefits, the Veteran's hearing was noted to be normal.
On April 2008 VA psychiatric examination, a hearing loss was noted.
In March 2009, the Veteran filed the instant claim, asserting current hearing loss disability and exposure to acoustic trauma in service (as gunner and assistant gunner on 60 mortars.) The following month, he submitted a statement describing, the nature of his military noise exposure and the extent of his current disability. He stated that his hearing loss had persisted for "a long time," and that, while hunting with buddies in the 1970s, he was unable to hear deer as well as they were.
In April 2009, VA received lay statements from the Veteran's wife and former employer. His wife stated that he has a hearing loss disability that has worsened over the 23 years they have been married. The Veteran's former employer at the print plant (where he worked from March 1993 to October 2007) stated that the Veteran had difficulty hearing customers on the phone.
On May 2009 VA audiology examination, puretone thresholds, in decibels, were:
HERTZ
1000
2000
3000
4000
Average
RIGHT
35
50
60
65
52.5
LEFT
35
55
60
60
52.5
Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 72 in the left ear. The diagnosis was bilateral mild to moderately severe sensorineural hearing loss.
The examiner noted that, although the Veteran had combat noise exposure in service, his hearing was normal on separation. Furthermore, the Veteran had significant postservice employment and recreational noise exposure, including work in in a textile mill and hunting/chainsaw use. Based on that evidence, the examiner opined that the Veteran's hearing loss was less likely than not due to active service.
The record includes VA treatment records from May 2006 to September 2009. Primary care nursing notes from September 2007, January 2009, and February 2009 note reports of difficulty hearing. Hearing loss was also reported on a private treatment record from July 2007, contained in the Veteran's SSA records. There is no clinical notation of hearing loss prior to July 2007. [Hearing loss disability was not cited in his application for SSA benefits or in his June 2008 application for a total disability rating based on individual unemployability.]
In his December 2009 substantive appeal, the Veteran stated that the textile mill wasn't that noisy and that he wore ear plugs, that he fired louder weapons more often in the military than while hunting, and that he had only used a chainsaw periodically, as needed, over the past 10 years. In a February 2012 letter to his senator, the Veteran again noted his military noise exposure.
It is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385, as such was shown on May 2009 VA audiometry. Based on his duties in service, it may also reasonably be conceded that the Veteran was exposed to hazardous levels of noise in service. What remains necessary to establish service connection for his bilateral hearing loss is competent evidence of a nexus between the current hearing loss and his service/noise trauma therein.
Audiometry showed normal hearing on service separation, and the first clinical indication of hearing loss in the record is from July 2007. In his April 2009 statement (regarding difficulty hearing deer), the Veteran appears to be suggesting a continuity of symptomatology since service. However, such suggestion is contradicted by his report of normal hearing on 1990 VA general medical examination, and the Board finds that the suggestion is not credible. Therefore, the Board finds that service connection for hearing loss disability based on finding that such disability became manifest in service and persisted is not warranted. As there is no evidence that SNHL was manifested to a compensable degree in the first postservice year, service connection for hearing loss on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C.A. § 1112), is also not warranted.
What remains for consideration is whether, in the absence of manifestation in service, and continuity since, the Veteran's bilateral hearing loss disability may nonetheless be related to his remote service/noise trauma therein.
Whether or not there is a nexus between a current bilateral hearing loss and remote service/noise trauma therein, absent evidence of continuity, is a medical question that requires medical expertise. See Jandreau, supra. The only medical evidence in the record that directly addresses the matter of a nexus between the Veteran's conceded noise exposure during service and his current bilateral hearing loss is the opinion offered on May 2009 VA examination. In the May 2009 opinion, the examiner opined that the Veteran's hearing loss was less likely than not caused by or related to his active service. As the opinion is by a medical professional competent to provide it, explains the underlying rationale, cites to factual data, and identifies an alternate (nonservice-related) etiology for the current hearing loss disability it is probative evidence in this matter. As there is no competent (medical) evidence to the contrary, the Board finds it persuasive.
The Board has considered the lay statements from the Veteran's wife and employer. These statements described the Veteran's disability as observed at least 16 years (wife) after service and are consistent with the findings of the VA audiologist that the Veteran had gradual onset of hearing loss while engaged in postservice employment and hobbies that involved various exposures to acoustic trauma; neither statement is to the effect that he experienced hearing loss in service or within the year following service.
The Board has also considered the Veteran's own lay statements concerning the etiology of his bilateral hearing loss. While he may be competent to testify as to the symptoms he experiences, and to describe the types of noise to which he was exposed, in, and following, service, absent onset in service and continuity since, he is not competent to, by his own opinion, relate his current hearing loss to noise trauma in service. He is a layperson, and lacks the training/expertise to opine competently on a medical question such as that presented in the instant case, i.e., whether hearing loss first documented many years after exposure to noise trauma may be related to such trauma rather than to intervening etiological factors.
In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore the benefit of the doubt doctrine does not apply. The appeal must be denied.
ORDER
The appeal seeking service connection for bilateral hearing loss is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs